Britain’s failure to gain legal standing for the Balfour Declaration

Abstract

The document that Britain composed for its governance of Palestine (Mandate for Palestine) called for implementation of the Jewish national home mentioned in the Balfour Declaration. However, Britain’s governance of Palestine, purportedly under the mandate scheme of the League of Nations, never gained a lawful foundation. The League of Nations had no power under the League Covenant to attribute legal significance to the Mandate for Palestine, or to give Britain a right to govern. Britain failed to gain sovereignty, which was a prerequisite for governing Palestine or for holding a mandate. Britain gave varying explanations at different times in an effort to show that it did hold sovereignty. The United Nations did not question Britain’s legal standing in Palestine but accepted the legitimacy of the Mandate for Palestine as a basis for dividing the country. The issue of territorial rights in historic Palestine remains unresolved to the present time.

Keywords:

• belligerent occupant
• mandate
• sovereignty
• League of Nations
• Balfour Declaration
• Treaty of Lausanne

1. Introduction

In July 1920, King George V proclaimed that Britain was instituting rule in Palestine under a system outlined in the recently adopted Covenant of the League of Nations called “mandates.” In a public message headed “To the People of Palestine,” the King announced that “the Allied Powers whose arms were victorious in the late war have entrusted to my country a mandate to watch over the interests of Palestine” (King George, 1920). The King did not explain how, as a belligerent occupant, Britain had standing to change Palestine’s legal order, or how Britain’s Allies possessed a power to “entrust” to Britain a mandate. As we shall see, the Allies had not in fact authorized Britain to declare mandate rule. The King also made the supposed decision of the Allies seem weightier than it was. The “Allied and Associated Powers” numbered 27. They had played a role in making peace with Germany (Treaty of Versailles, 1919). But only three, the so-called “Principal Allied Powers”, had been in talks with Britain about a peace treaty with Turkey, which was the context for their discussion of Palestine. As a result, there were only three Allies (Japan, Italy, France) who supposedly “entrusted” a mandate to Britain.

The King bent the facts, because Britain was covering for acting unlawfully by proclaiming mandate rule in Palestine. Britain was a belligerent occupant in Palestine, having taken the country by military means (McTague, 1978, p. 55). The fact that it understood itself to be a belligerent occupant is seen in the fact that it was ruling Palestine at the time through a military structure that it called the Occupied Enemy Territory Administration (Foreign Office, 1919). It had no peace treaty with the sovereign, which was Turkey. The British Army’s manual on the law of warfare specified, for a belligerent occupant, that “altering the existing form of government” was forbidden (Manual of Military Law, 1914, chap. 14, art. 354). Britain had only recently signed on to a treaty that said so (Hague, 1907, art. 43). The King’s act of declaring rule in a form of Britain’s own devising was unlawful.

The King made an additional point in his announcement. “You are well aware,” he said, “that the Allied and Associated Powers have decided that measures shall be adopted to secure the gradual establishment in Palestine of a national home for the Jewish people. These measures will not in any way affect the civil or religious rights or diminish the prosperity of the general population of Palestine.” Here again, the King was reciting “facts” in less than a forthright fashion. As we shall see, it was less that the Allies had decided that Britain should bring into being a “national home for the Jewish people” than that the Allies had been badgered and bought off not to object if Britain went ahead with such a project. Britain began implementing the national home before raising it with the Allies. When Britain mentioned the idea to the Allies, as we shall see, they attacked it.

Britain did shortly approach Turkey to get sovereignty. Britain also approached the League of Nations, seeking endorsement of the national home project. As the documentation adduced below will show, these efforts came to naught. Turkey did not give Britain the sovereignty it needed to govern Palestine. The League enjoyed only minimal powers with regard to the initiation and implementation of a mandate, but even within these limits, the League did not endorse Britain’s aim in regard to a Jewish national home. The foundation on which Britain purported to build a legal edifice—the mandate system as described in the League Covenant—concealed cracks of its own. It is to the Covenant that one must look first in order to understand how Britain tried to build a case for the legality of its tenure and policy in Palestine.

2. Mandates under the League Covenant

The mandate system was described in the Covenant of the League of Nations (Covenant, 1919, art. 22) as follows:

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

The Covenant’s description was largely fiction, particularly as applied to Palestine. The mandate system was to be used for “peoples not yet able to stand by themselves,” but under Turkey, which held Palestine until 1918, the population had experience in modern governance, enjoying autonomy at the municipal level, and electing representatives to the Turkish parliament, where they participated in the affairs of the Turkish Empire. The “strenuous conditions of the modern world” was little more than a pretense to justify outside rule. As for “securities” to ensure performance by an outside state, the Covenant, as will be seen, provided little.

Covenant Article 22 next explained how the “sacred trust” was to be implemented:

The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.

The population was to be tutored to learn self-government. Another line in the same article of the Covenant explained that, for territories under Turkey, “their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.” This line implied that there would be an indigenous governing apparatus that could be “advised” and “assisted.” For Palestine, however, the King mentioned no indigenous governing apparatus. Instead, he announced that he had already appointed a “High Commissioner,” a post used in British colonial practice (King George, 1920).

The proposition that an “advanced nation” would perform the role of “Mandatory” implied a vetting process to determine who would take a particular territory. A sentence later in the Article 22 description reinforced this impression, reciting, “The wishes of these communities must be a principal consideration in the selection of the Mandatory.” Before the ink was dry on the Covenant, however, Britain’s secretary of state for foreign affairs, A.J. Balfour, told the French, as the two countries were dividing Turkey’s Arab provinces between them, “we do not propose even to go through the form of consulting the wishes of the present inhabitants of the country” (Balfour Memorandum, 1919, p. 345). As Balfour spoke, a US-sponsored survey team, sent to ascertain the population’s “wishes,” was in process of concluding that Britain was not wanted (King-Crane Commission, 1919, p. 772). When the issue was briefly raised, at a meeting of the Principal Allied Powers, of who would take which territory, Britain’s prime minister cut off discussion, explaining that he and the French had already worked that out (Downing Street, 1920, p. 102).

The very term “mandate” was disingenuous. It was borrowed from French private law, where it is described in §1984 of the Civil Code of 1804 as “an act whereby one person gives another the power to do something for the mandator and in his name. The contract is formed only upon acceptance by the mandatory.” In the Covenant article on mandates, to the contrary, the population of a territory had no role to confide its affairs to an outside state. Rather, the relationship was imposed on the population, as the Crown did on the Palestine population in July 1920.

The Covenant said that an outside state was to govern “on behalf of the League.” But it was not even the League that confided a population’s affairs to an outside power. The League did not name a “mandatory.” The decision to initiate a mandate arrangement rested with the states that held a territory. The League had no role under the Covenant even in confirming a “mandatory’s” status after the fact.

Finally, the Covenant was not even clear that the mandate system was to apply to Turkey’s Arab provinces. The Covenant article on mandates made specific reference to “communities formerly belonging to the Turkish Empire.” That reference suggested that the mandate system could apply to communities in Turkey’s Arab provinces, at least if states taking those communities chose to apply it. This same Covenant article, however, said that the mandate system applied, as quoted above, to “territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them.” As of July 1920, Palestine was still under Turkish sovereignty.

The King referred in his July 1920 proclamation to “Palestine,” but as he spoke there was no defined territorial entity called Palestine. Various parts of what historically was Palestine were under different territorial administrative units of the Turkish Empire. There were no borders for a Palestine. By the end of 1920, Britain and France, by a treaty between them, did divide Turkey’s Arab provinces into states, as Syria, Iraq, and Palestine (Convention, 1920, art. 1). The League had no role in that partition, as, indeed, it could not have, since the League had no rights over territory. Nor did the population have any say in this partition, which was in any event unlawful since neither Britain nor France held sovereignty. States cannot alter territory they hold as belligerent occupants only.

3. Britain’s claim of legality

Despite the King’s obfuscation and the Covenant’s vagaries, the legality of Britain’s governance of Palestine is widely assumed in the historical and legal literature, based on what transpired subsequently through Britain’s interaction with the League of Nations. Riebenfeld (1993, p. 41), for example, wrongly asserts that Jewish territorial rights in Palestine flow from having been recognized in that way by the international community.

The issue of legality holds contemporary importance, because if Britain’s basis for governing Palestine was lacking, its promotion of a national home lacked a basis as well. As will be seen below, the United Nations took as fact that Britain had proper governance authority in Palestine and used that understanding as a basis to recommend Jewish statehood. Territorial rights in the Palestine as it came to be in 1920 continue to be contested down to the present.

Beginning in 1920, Britain made a strenuous effort to gain legal status in Palestine and to enlist the international community in its campaign for a Jewish national home. The latter concept appeared in a document that Britain’s War Cabinet had composed in 1917, reciting that Britain “viewed with favour the establishment in Palestine of a national home for the Jewish people” (Balfour Declaration, 1917). A.J. Balfour was not a member of the War Cabinet but had advocated for the issuance of such a statement. The War Cabinet asked him to deliver the statement to the Zionist Organization’s British affiliate, which had lobbied for it (Downing Street, 1917). The Europe-based Zionist Organization sought Jewish statehood in Palestine. Balfour wrote a cover note for the War Cabinet’s statement, which came to be called the “Balfour Declaration.”

In December 1920, Britain incorporated the Balfour Declaration into a document it sent to the League of Nations. This document, which explained how Britain intended to govern Palestine, came to be called the Mandate for Palestine (Foreign Office, 1921). While the Balfour Declaration is widely viewed as a vague promise lacking legal significance, the Mandate for Palestine, through its subsequent consideration by the League of Nations, is argued by some historians to be a document that raised the Jewish national home concept to the level of international law, and in a reading that coincided with the objectives of the Zionist Organization. Susan Pedersen, a specialist on the history of the League of Nations, makes this argument. “Unlike the Balfour Declaration,” Pedersen wrote (Pedersen, 2023, p. 279), “which Britain had issued at will and could fulfil or repudiate at will, the mandate was an international legal instrument.” Pedersen said that the Mandate for Palestine “may have been drafted by the British, but it could not be redrafted except with the consent of the League Council; it could be flouted, but only if Britain were willing to bear the cost of League censure.”

Historian Malcolm Yapp (1995, p. 9) wrote to the same effect, calling the Mandate for Palestine “a binding legal contract made between Britain and the League of Nations.” The only type of binding contract in international law is a treaty. Neither the League nor Britain, however, gave indication that they regarded the mandate document as a treaty. On its face, the document lacked the indicia of a treaty. A treaty recites obligations of the parties. The mandate document recited obligations for Britain, but not for the League. A treaty bears signatures of the parties, showing their intent to be bound. The mandate document bore no signatures (British Mandate for Palestine, 1922). For members of the League, Covenant Article 18 required that their treaties were to be registered with the Secretariat, for publication in the League of Nations Treaty Series. Britain did not register the Mandate for Palestine, nor was it published in the Treaty Series.

Britain, moreover, did not regard the Mandate for Palestine as a document that was binding on it. In later years, Attorney-General Hartley Shawcross would explain in the House of Commons that the Mandate for Palestine was not “a kind of international statute or contract, giving rise to enforceable obligations.” In 1923, in fact, the British Cabinet, seeing that the Jewish national home idea was badly received by the Arabs of Palestine, held a confidential inquiry to decide whether to scrap the Balfour Declaration, which was a key feature of the Mandate for Palestine. The Cabinet decided to stick with the Balfour Declaration, but, as the Cabinet documentation makes clear, it did so out of considerations of British self-interest, not because the Cabinet thought that Britain was obligated (British Cabinet, 1923).

Pedersen’s claim that the Mandate for Palestine “could not be redrafted except with the consent of the League Council” is simply not correct. The Covenant gave the Council no such role. The Council, moreover, was constrained in any action it might take to censure Britain by the unanimity rule in force in the Council. As a result of that rule, no resolution could be adopted without Britain’s acquiescence (Keith, 1922, p. 80). As further proof of the international character of the Balfour Declaration, Pedersen cited an obligation that Britain would have to file reports with the League of Nations. “Once the mandate was brought into effect,” she wrote,

Britain would be required to report annually on its administration of Palestine to the League Council, to send representatives annually to meet with and answer any questions posed by the Permanent Mandates Commission, the body of purportedly impartial experts appointed to ensure compliance with the mandate text, and to forward and respond to any petitions alleging violations of that mandate sent either by the territory’s inhabitants or by interested outsiders. The incorporation of the declaration into the mandate for Palestine thus didn’t just make Britain’s commitment to the Jewish national home public; it made British administration answerable internationally for its fulfilment and gave the Zionist project the protection of international law.

(Pedersen, 2023, p. 279)

4. The limited prerogatives of the League Council

The role of the League Council in regard to mandates was in fact quite limited. That role was spelled out in three sentences in Covenant Article 22, which was the only article in the Covenant on mandates:

In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.

The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.

A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.

The first sentence did impose an obligation to report annually, but leaving it to the mandatory to determine how extensive its report would be. As seen in the three sentences, there was no obligation to “send representatives annually to meet with” the Permanent Mandates Commission, no obligation to “answer any questions posed by the Permanent Mandates Commission,” no obligation to “forward and respond to any petitions alleging violations of that mandate sent either by the territory’s inhabitants or by interested outsiders.”

As is apparent from the three sentences, the Covenant gave the Council no power to approve or disapprove a mandate document. The only role for the Council in regard to the terms of a mandate (per the second sentence) related to the “degree of authority, control, or administration” a mandatory planned to exercise, and then only if those terms were not specified by League members, of which Britain was one. In the Mandate for Palestine, Britain specified, in Article 1, that it was taking full power for itself: “The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate.” As a result, there was nothing left for the Council to “define.”

The reporting regime did not bring “protection of international law” into the picture. The Mandate for Palestine, per Shawcross, carried for Britain no “enforceable obligations.” Britain did want the League Council’s approbation for its legally questionable plan to bring an outside population to Palestine. An obstacle was that France, a Council member, was not willing to go along until the Council gave comparable approbation for the mandate it was taking for Syria. France had yet to finalize its mandate document for Syria, due to certain objections raised by Italy.

Despite the fact that the Covenant, as we saw, gave the Council no role to approve mandate documents, the Council, at a meeting on 24 July 1922, purported to approve the texts of both the Palestine mandate and the Syria mandate. There was no on-the-record discussion. All that appears in the meeting minutes is a statement that a “declaration” was read aloud by the Council President, who recited, “In view of the declarations that have just been made, and of the agreement reached by all the Members of the Council, the articles of the mandates for Palestine and Syria are approved. The mandates will enter into force automatically and at the same time, as soon as the Governments of France and Italy have notified the President of the Council of the League of Nations that they have reached an agreement on certain particular points in regard to the latter of these mandates.” A notation in the minutes followed, reading, “The Council approved this declaration,” meaning the declaration by the President (League Council, 1922).

The “declarations that have just been made” related to the fact that the Palestine mandate was dependent on the Syria mandate—an indication that what the Council was doing was more in the nature of political deal-making than of legal assessment. The Palestine mandate would not go into effect until and unless France and Italy worked out unresolved issues in the text of France’s mandate over Syria. As a matter of the Council’s powers (per the three sentences in Article 22), Council approval of the articles could have no legal significance, nor could the Council attribute to a mandate any legal effect.

While purporting to approve “the articles” of the Mandate for Palestine, the Council showed little regard for Covenant requirements. Where the Covenant called for provision of “administrative advice and assistance” only, the Mandate for Palestine placed full power of administration in Britain’s hands. The Covenant said that a population’s wishes had to be considered in the selection of a mandatory, but no such consideration had been given. The Covenant required a mandatory to promote the well-being of the population, but the Palestine mandate gave an administrative role to the Zionist Organization, which aimed at turning Palestine into a Jewish state.

The Council never discussed these discrepancies. It would have been ultra vires its authority to do so, as Balfour explained: “The public mind might have misunderstood the powers of the League of Nations and of its Council regarding mandates. Mandates were not the creation of the League, and they could not in substance be altered by the League” (Council, 1922b). Balfour was correct in this analysis of the limitations on the Council’s powers.

5. Britain’s quest for support for the Balfour Declaration

The Council never discussed, in particular, the Balfour Declaration—what it meant or whether it was appropriate to be included in the mandate document. The only provisions on which the Council held any discussion related to control over the holy sites of Palestine. Even on that matter, however, the Council discussion was not about who should control the sites, but about whether the major powers seated on the Council could agree who should control them.

Even had the Mandate for Palestine had some legal force, it would not have endorsed the Zionist objective of Jewish statehood. The Balfour Declaration mentioned a “national home,” but not statehood. Concerned over this (in its view) shortcoming, the Zionist Organization successfully lobbied Britain to write an interpretive gloss on the Balfour Declaration into a preamble clause of the Mandate for Palestine in a way that came close to making the Balfour Declaration seem to call for Jewish statehood. Following a preamble clause that referenced the Balfour Declaration, the clause read: “Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

In a policy statement issued early on about “national home” (British Policy in Palestine, 1922) and another some years later (Palestine: Statement of Policy, 1939), the British Government explained that the phrase did not imply Jewish statehood. The matter had been discussed by the four permanent members of the League Council at San Remo, Italy, in April 1920. The League Council had eight members, four of them permanent. The four were Britain, France, Italy, and Japan. These four were also the so-called Principal Allied Powers of World War I. Their April 1920 meeting was held to chart the text of a peace treaty with Turkey. At Britain’s initiative, they decided that Britain should take Palestine on the basis of the mandate system, assuming that Turkey would, in a peace treaty, cede sovereignty to them collectively (San Remo meeting English notes, 1920, p. 177).

At the meeting, George Curzon, as secretary of state for foreign affairs, suggested that the Balfour Declaration be written into the peace treaty. Curzon had been lobbied for this inclusion. His secretary was told by the Zionist Organization that it was “essential that the dedication of Palestine as the Jewish National Home should find explicit recognition in the Turkish treaty.” The Allies objected, however (San Remo meeting English notes, 1920, p. 168).

The Allies did not want the Zionist Organization to be able to use the peace treaty as a starting point to press for Jewish statehood. In an attempt to blunt their objections, Curzon confronted the Allies with statements they had made during the war that were favorable towards the Balfour Declaration. Italy and France had been lobbied by the Zionist Organization to make such statements (Sokolow, 1969, p. 127). The Balfour Declaration was issued, as Curzon knew from having been in the War Cabinet, to gain Jewish support for the war effort. Now that the war was over, Philippe Berthelot of the French Foreign Ministry told Curzon that the Balfour Declaration “had long been a dead letter” (San Remo meeting English notes, 1920, p. 163).

The Japanese delegate demanded to “place on record” that Japan “had never accepted the declaration” (San Remo meeting English notes, 1920, p. 167). France said that it did not take the Balfour Declaration to mean anything that would infringe on the national political rights of Palestine’s existing population. Prime Minister Alexandre Millerand demanded that it be written into the record of the meeting that a phrase in the Balfour Declaration that the civil and religious rights of the existing population be respected included political rights. “I ask,” he said, “that it be formally understood and written into the procès-verbal that the phrase ‘civil and religious rights of non-Jewish communities’ includes, in the understanding of the British Government as of ours, political, civil, and religious rights.” Curzon conceded the point, saying, “I don’t see a difference between civil and political rights. In English, the word ‘civil’ refers to political rights” (San Remo meeting French notes, 1920, p. 174). The Balfour Declaration could be mentioned in the peace treaty, the meeting minutes show, only as “an undertaking by the mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine” (San Remo meeting English notes, p. 176). Britain’s prime minister, David Lloyd George, later acknowledged having been forced to make this concession to get the Allies to consent to mentioning the Balfour Declaration in the prospective peace treaty (Lloyd George, 1938, p. 1175).

After the April 1920 meeting, Millerand briefed his staff on what had been agreed. He explained, “The French Government and its delegates at various conferences have never accepted that Palestine could become a Zionist state, or that a Zionist regime could be installed in Palestine. There has never been a question of anything other than a Jewish national home, that is, to facilitate the establishment and prosperous development of Jewish settlements, agricultural, industrial, at given locations in Palestinian territory, to which Jews could come from various parts of the world to find a home in their ancient native land” (Millerand, 1920, p. 617).

At the April 1920 meeting, the Italians saw an opportunity to make demands for themselves. Italy wanted territory in Anatolia, and in particular access to coal reserves there, as part of a peace treaty with Turkey. In the meeting minutes, just after mention of agreement that Britain would get Palestine and that the Balfour Declaration could be mentioned in a peace treaty, the following appears: “In reference to the above decision the Supreme Council took note of the following reservation of the Italian delegation: “La délégation italienne, en considération des grands intérêts économiques que l’Italie en tant que Puissance exclusivement méditerranéenne possède en Asie Mineure, réserve son approbation à la présente résolution, jusqu’au règlement des intérêts italiens en Turquie d’Asie” (San Remo meeting English notes, p. 177).

So Italy was letting Britain put the Balfour Declaration into a peace treaty as quid pro quo for something it wanted. Italy was conditioning its consent to Britain taking Palestine dependent on satisfaction of Italy’s “economic interests.” In the event, Italy never got what it wanted in Anatolia, so its condition for allowing Britain to write the Balfour Declaration into a peace treaty was never satisfied.

All this discussion about the inclusion of the Balfour Declaration in the peace treaty would be for naught, as will be seen shortly, because although Turkey would sign a treaty with this language, it would ultimately decline to ratify. The April 1920 discussion remains probative, however, for showing a consensus among these permanent members of the League Council that the Balfour Declaration did not call for anything that would infringe on Arab national rights in Palestine. Their understanding was that the Balfour Declaration did not support Jewish territorial entitlement. Even if anything done by the League Council can be taken as endorsement of the Mandate for Palestine, such an endorsement did not encompass a self-determination right or Jewish territorial entitlement.

Like the Allies, the United States resisted entreaties by Britain to endorse the Balfour Declaration. In the Mandate for Palestine, Britain offered to League members certain rights of commercial access to Palestine (British Mandate for Palestine, 1922, art. 18). The United States, not being a League member, sought a bilateral treaty with Britain to give it those same rights. Curzon saw an opportunity to extract a pro-Balfour Declaration statement from the United States as quid pro quo for giving the United States commercial rights in Palestine. “His Majesty’s Government are anxious,” Curzon told the US ambassador, “that the convention should contain a specific allusion to the policy of establishing a national home for the Jewish people in Palestine (Curzon, 1922, p. 80). Curzon called what they were negotiating “the treaty for recognition by the United States of America of the British mandate in Palestine” Curzon, (1923a). The United States refused, however, to include any language that would say that it favored the Balfour Declaration or the national home concept (Manuel, 1949, p. 284).

6. Britain’s scheme to gain sovereignty

Even if, by some stretch, one could conclude that the League had power over mandates, the Mandate for Palestine would still fall short of any status in international law, because Britain failed to gain sovereignty. Sovereignty was needed before the Mandate for Palestine could have standing in law. Renunciation of sovereignty by Turkey in favor of the Allies, or in favor of Britain directly, “had indeed to be secured before any definite régime could legally be established,” wrote a legal analyst of the era (Stoyanovsky, 1928, p. 19). Under the League Covenant, sovereignty was expected for the holding of a mandate by the reference in Article 22 to territory that would be under mandate as territory that has “ceased to be under the sovereignty of the States which formerly governed them.” The Covenant was adopted as part of the peace treaty with Germany. That peace treaty required Germany to cede sovereignty in its overseas territories to the Principal Allied Powers, who then re-ceded them to the states of their choosing (Treaty of Versailles, 1919, art. 119). The League Council said that what it called “legal title” must come through the Principal Allied Powers before a state could hold a mandate (League Council, 1920).

Britain hoped to gain sovereignty from Turkey through the peace treaty that was drafted by the Principal Allied Powers at their April 1920 meeting in San Remo. That draft became the Treaty of Sèvres, which Turkey signed in August 1920, subject to ratification. As of May 1922, Turkey had not ratified. “Of course,” said Balfour in the League Council, “while the Treaty of Sèvres remained unratified, the Mandate could not legally be in force” (Council, 1922a). The Foreign Office made the same point in a press statement it issued the same day, making clear that although Britain was seeking Council approval for the content of its mandate document, the mandate itself could not be in effect “until the Treaty of Sèvres has been properly ratified by Turkey.”

Britain thus planned to gain sovereignty over Palestine by the same technique the Allies had used for Germany’s overseas territories. Turkey would cede sovereignty to the Principal Allied Powers in the Treaty of Sèvres. Its sovereignty transfer provision read: “Outside her frontiers as fixed by the present Treaty Turkey hereby renounces in favour of the Principal Allied Powers all rights and title which she could claim on any ground over or concerning any territories outside Europe which are not otherwise disposed of by the present Treaty” (Treaty of Sèvres, 1920, art. 130).

Then in an article on Palestine, the Treaty of Sèvres recited that the Principal Allied Powers would re-cede to a state that would rule under the mandate system and that would implement the Balfour Declaration:

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

(Treaty of Sèvres, 1920, art. 95)

The Principal Allied Powers, as we saw, had already decided in April 1920 that if this treaty scheme worked, Britain would take Palestine. By early 1922, however, a resurgent Turkey was showing itself unwilling to ratify the Treaty of Sèvres. Italy objected that it was premature therefore to consider the Mandate for Palestine in the League Council, even for the limited purpose of approving its content. Italy called it “a practical impossibility for the Council to take a decision on the question during the present session” (Council, 1922a).

Because of the strong opposition to Zionism that it faced in Palestine, however, Britain was under pressure to get some indication of approval from the Council. The Palestine Arab Congress was appealing to Britain to abandon the Balfour Declaration and to institute an indigenous government (Palestine Arab Congress, al-Husseini et al., 1921). The Zionist Organization’s pursuit of its aims had led to Arab street protest. A British military court of inquiry that investigated the situation found the Arab population “exasperated beyond endurance by the aggressive attitude of the Zionists, and despairing of redress at the hands of an Administration which seems to them powerless before the Zionist organization” (Palin Report, 1920). A statement by the League Council approving the mandate document’s terms might convince the Palestine Arabs that resistance to the Balfour Declaration was useless.

Balfour persevered in the League Council. He quietly made concessions to Italy on some territorial issues, and Italy agreed not to oppose Council action on the Palestine mandate document, but not before extracting from Britain a commitment to implement the Balfour Declaration only in ways that did not infringe upon Arab rights (Downing Street, 1922). The Council then did, on 24 July 1922, allow the referenced notation to be made in the meeting minutes to approve the articles of the Mandate for Palestine. No mention was made in the minutes of the sovereignty issue, but Balfour’s acknowledgment that the mandate could not be effective without ratification of the Treaty of Sèvres had made clear that the sovereignty condition was yet to be fulfilled.

The Crown, however, even without sovereignty, immediately issued an Order in Council detailing a governing structure for Palestine. So the Crown was acting as though it now could lawfully administer Palestine. The fact that it was so construing the notation of 24 July is indicated by the fact that it wrote a clause into the Order in Council to explain why Britain had lawful jurisdiction to govern. The clause read: “And whereas, by treaty, capitulation, grant, usage, sufferance and other lawful means, His Majesty has power and jurisdiction within Palestine” (Palestine Order in Council, 1922).

That clause thus was asserting that Britain had “power and jurisdiction,” in other words, a lawful basis to govern Palestine. That assertion, however, was inconsistent with what Balfour had just told the League Council. Neither the Crown nor the Government explained which one of the items listed in the clause supposedly provided the basis. The clause was actually taken, verbatim, from the Foreign Jurisdiction Act of 1890, a provision enacted by Parliament as a checklist of the various possible ways Britain could lawfully exercise authority over territory abroad. None of them, however, had anything to do with the situation of Palestine (Foreign Jurisdiction, 1890). “Treaty” did not apply, given the non-ratification of the Treaty of Sèvres. “Capitulation” was a procedure for authority by British consular officials by agreement with a foreign government. There had been no “grant” to Britain. There was no “usage” in Palestine that would give Britain any authority. Britain had no claim by “sufferance.” Balfour had just told the Council that sovereignty was needed before Britain could govern on the basis of the mandate document, yet here the Crown was claiming a right to govern.

7. The collapse of Britain’s scheme to gain sovereignty

By Autumn 1922, it was obvious that Turkey would not ratify the Treaty of Sèvres. Britain was forced to negotiate a new peace treaty. A quite different treaty was signed at Lausanne, Switzerland, in July 1923. It contained no clause like the one in the Treaty of Sèvres ceding sovereignty to the Principal Allied Powers. Nor did it mention a mandate or the Balfour Declaration. The Treaty of Lausanne defined the territory that the Allies would recognize as that of Turkey, essentially Anatolia. Then, by Article 16, it dealt with other territory of Turkey’s, including the Arab provinces. In an unofficial English translation, Article 16 read:

Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present Treaty and the islands other than those over which her sovereignty is recognised by the said Treaty, the future of these territories and islands being settled or to be settled by the parties concerned.

(Treaty of Lausanne, 1923)

The territorial disposition effected by Article 16 comes through more clearly in the original and only authentic text of the Treaty of Lausanne, the one in French. The Treaty of Lausanne was concluded in French and in French only. The English text just quoted was a translation prepared by the British Foreign Office. The French text read:

La Turquie déclare renoncer à tous droits et titres, de quelque nature que ce soit, sur ou concernant les territoires situés au-delà des frontières prévues par le présent Traité et sur les îles autres que celles sur lesquelles la souveraineté lui est reconnue par ledit Traité, le sort de ces territoires et îles étant réglé ou à régler par les intéressés.

(Traité de Lausanne, 1923)

Per Article 16, the status of Turkey’s territories beyond Anatolia was to be “regulated” by “les intéressés.” In French legal usage, “les intéressés” means those with a legal interest in a matter. In other provisions, the Treaty of Lausanne referred to the territories “detached” from Turkey as “states” (Treaty of Lausanne, 1923, art. 30, art. 46, and Protocol 12, art. 9). They were therefore the entities with a legal interest. They were seen as sovereign by the Treaty of Lausanne. Sovereignty over Palestine devolved onto Palestine, not onto Britain. That reading of the Treaty of Lausanne was confirmed by the Permanent Court of International Justice in a case involving Palestine. The court said that the legal successor to Turkey in the territory that became Palestine was Palestine, not Britain (Permanent Court of International Justice, 1925).

Britain nevertheless approached the League Council on August 16, 1923, saying that France was taking too long with finalizing its Syria mandate, so that at the next Council meeting, Britain would ask the Council to proclaim “the simultaneous entry into force of the British mandate for Palestine and the Treaty of Lausanne” Curzon (1923b)August 16). By “entry into force” Curzon meant ratification, which had yet to occur. Curzon did not explain in his message how he read Article 16 to give Britain sovereignty. He evidently took the final phrase to refer to the agreement among the Allies at the April 1920 meeting as having “settled” Palestine’s status. Such a reading, however, contradicted what both Balfour and the Foreign Office had said in May 1922, namely, that Britain still needed cession from Turkey to gain sovereignty. Curzon was giving a strained reading to Article 16 to make it seem that Britain would hold sovereignty once the Treaty of Lausanne was ratified.

Curzon’s claim that Article 16 would yield sovereignty to Britain was debunked the following year by his own Legal Adviser. In the Permanent Court of International Justice in July 1924, Cecil Hurst, Principal Legal Advisor to the Foreign Office, undertook to explain Britain’s status in Palestine. He started from what he called the “first treaty of peace,” the Treaty of Sèvres. “The first treaty of peace which was negotiated with the Turks,” he said, “was never ratified and has expired. It has become extinct, as if it had never been drafted at all. It has been replaced by another instrument which we hope will come into force shortly, but if the terms of this later instrument, known as the Treaty of Lausanne, are studied, it will be seen that is not a treaty which creates the British rights of control or government in Palestine.” By July 1924, when Hurst spoke, the Treaty of Lausanne was yet to be ratified. Hurst told the court that the Treaty of Sèvres had contained “a definite renunciation by Turkey of her rights over the territories outside her borders in favour-of the Principal Allied Powers.” However, he said, “Under the Lausanne settlement Turkey merely renounces her rights altogether over the territories outside her borders and disinterests herself in their future” (Permanent Court of International Justice, 1924). So Hurst was saying that Britain gained no sovereignty by the Treaty of Lausanne.

The League Council did not take up Curzon’s request. Events went in a different direction. In September 1923, with the Treaty of Lausanne still unratified, the Council heard from France that it had finalized the mandate document for Syria. That information prompted the Council to address the issue of simultaneity between the two mandates. At a Council meeting on 29 September 1923, there was no on-the-record discussion, but a notation was entered in the minutes: “The Council noted that, in view of the agreement between the Governments of France and Italy in respect of the mandate for Syria, the mandates for Palestine and Syria would now enter into force automatically and at the same time” (League Council September 29, 1923).

The League Council, to repeat, had no power under the Covenant to put a mandate “into force.” But all that the Council was saying on September 29 was that the simultaneity condition had been satisfied. France’s Syria text having been finalized, the Syria mandate was no longer a political impediment to the entry into force of the Palestine mandate. Given that Curzon had just asked the Council to say that the Palestine mandate would take effect only upon ratification of the Treaty of Lausanne, however, the Council could hardly have intended to say that the Palestine mandate was in immediate effect. The notation, rather, meant that, in the Council’s view, the two mandates would enter into force if and when the sovereignty condition was satisfied.

8. Britain’s attempts to explain its status in Palestine

The Treaty of Lausanne was ratified in 1924, the final deposit of necessary instruments of ratification coming on August 6, putting it in force on that date (Treaty of Lausanne, 1923). When Britain’s high commissioner in Palestine, Herbert Samuel, spoke at the League a few months later, he claimed that Britain’s mandate had become legally valid on September 29, 1923. Samuel referenced a report that Britain had just prepared on its administration of Palestine. Samuel said that the report “dealt with the year 1923, during part of which period the country had not been under mandate. The terms of the mandate had been approved by the Council on July 24th, 1922 but had only come into force on September 29th, 1923 ” (Permanent Mandates Commission, 1924).

So Britain was taking September 29, 1923 as the date on which it supposedly gained a mandate for Palestine. This explanation left key questions unanswered. If Britain became a mandatory only on September 29, what was it before that date? Was the King’s proclamation of a mandate in July 1920 invalid? Samuel did refer to July 1920, saying “that the civil administration had been established in Palestine on July 1st, 1920 and that prior to that time the Government had been purely military.” Samuel did not explain how replacing military officers with non-military officials could change status from belligerency occupancy to something else.

The reality that Samuel was obscuring was that nothing had occurred to give Britain sovereignty. Samuel did not rely on the Treaty of Lausanne in his explanation of Britain’s status in Palestine. But the next year, in another report to the League, Britain did rely on it as a critical element to its status. The Government put the Treaty of Lausanne together with the Council notation of 29 September 1923: “The ratification of the Treaty of Lausanne in August, 1924, finally regularised the international status of Palestine as a territory detached from Turkey and administered under a Mandate entrusted to His Majesty’s Government. The terms of the Mandate had been approved in anticipation by the Council of the League of Nations in 1922, and the Mandate had been brought into operation by resolution of the Council in 1923” (Permanent Mandates Commission, 1925).

This explanation was no more coherent than Samuel’s. If the August 6, 1924 ratification of the Treaty of Lausanne was needed to “regularise” Britain’s status, the mandate could not have been “brought into operation” on September 29, 1923. Between September 29, 1923 and August 6, 1924 was the mandate “operational” but “irregular”? Using the Treaty of Lausanne was problematic in any event since it did not “regularise” Britain’s status. The Treaty of Lausanne, as we have seen, gave Britain nothing. The statement that the Treaty of Lausanne left Palestine “administered under a Mandate entrusted to His Majesty’s Government” made little sense, since the Treaty of Lausanne made no mention of any mandate.

These conflicting explanations given by Britain in the 1920s covered for Britain’s lack of any status in Palestine beyond that of a belligerent occupant. In their lack of candor, however, these explanations paled in comparison to the explanations Britain invented after World War II. In 1946, the Government was working with the United States to resolve the Palestine issue in what was called the Anglo-American Committee of Inquiry. Venturing to explain how its tenure in Palestine was lawful, the Government presented an account written by the Chief Secretary to the Government of Palestine. The account ran that the King proclaimed mandate rule in July 1920, but that “Turkish sovereignty over Palestine was not, however, formally renounced by Treaty until the signature on the 10th August, 1920, of the Treaty of Sèvres. Under Article 95 of that Treaty it was agreed to entrust, by application of the provisions of Article 22 of the Covenant, the administration of Palestine to a Mandatory who would be responsible for putting into effect the declaration originally made on the 2 November 1917, by the British Government and adopted by the other Allied Powers” (Survey of Palestine, 1946, vol. 1, p. 3).

Britain had, of course, hoped that Turkish sovereignty would be “formally renounced” by the Treaty of Sèvres, but as we have seen, and as Hurst explained, that treaty was a nullity because it was not ratified. The claim in the Survey that the Balfour Declaration was “adopted by the other Allied Powers,” was, as we have seen, not true.

In 1947, in another attempt to explain its status in Palestine, the British Government did not mention the Treaty of Sèvres. In that year, a Special Committee on Palestine was formed at the United Nations to make recommendations to the General Assembly. The British Government prepared an account of its tenure of Palestine, as background for the Special Committee. The Government explained its legal status in Palestine as follows:

The terms of the draft Mandate for Palestine were approved by the Council of the League of Nations on the 24th July, 1922. At that time peace had not been concluded between the Allied Powers and Turkey. It was not until the 29th September, 1923, after the Treaty of Lausanne had entered into force, that the Council of the League was able formally to give effect to the Palestine Mandate.

(British Information Services, 1947, p. 1)

This statement took off from the explanations we saw given in 1924, focusing on the League Council September 29 (1923) notation and the ratification of the Treaty of Lausanne, but in a new twist, asserting that the Treaty of Lausanne had “entered into force” prior to September 29, 1923. That assertion was false. As we have seen, the Treaty of Lausanne entered into force only on August 6, 1924.

The fact that Britain went to the length of inventing a string of palpably false explanations of its status in Palestine shows how clearly it understood that absent sovereignty, it had no business controlling Palestine. Britain had no basis to govern Palestine, no basis for a mandate, and no basis for implementing the Balfour Declaration. It had no basis for the Mandate for Palestine. No territorial right for the Jewish people gained any status in law. The Palestinian Arab lawyer Aziz Shehadeh was on the mark when he asked rhetorically in 1939, “What rights have the Jews in Palestine other than a promise given by a Strong Power” (Shehadeh, 1939, p. 11).

9. The damage of Britain’s deception

Britain’s prevarication aimed at the Special Committee on Palestine might not have mattered had the Special Committee realized that it was being deceived. Instead, the Special Committee parroted the British Government’s line that the mandate became legal in September 1923 and that the Balfour Declaration was part of it. Referring to the April 1920 Allies meeting at San Remo, the Special Committee wrote: “On 25 April 1920, the Supreme Council of the Allied Powers agreed to assign the Mandate for Palestine to Great Britain on the understanding that the BaIfour Declaration would be put into effect. The draft mandate was confirmed by the Council of the League of Nations on 24 July 1922, and entered into force formally on 29 September 1923” (Special Committee on Palestine, 1947, vol. 1, p. 18). The Special Committee found Britain’s rule in Palestine to have been lawfully based, writing, “The constitutional basis of the Government of Palestine established by the mandatory Power is set out in the Palestine orders-in-council, 1922 to 1940” (Special Committee on Palestine, 1947, vol. 1, p. 19). The Special Committee’s report was forwarded to the General Assembly, which used it as its basis for recommending Jewish statehood via partition of Palestine’s territory (Future Government of Palestine, 1947).

One might be tempted to take the approach of Hebrew University Professor Yuval Shany (Shany, 2016, pp. 401–402). Shany claimed that the Zionist project found validation through Britain’s interaction with the League of Nations, but he said that even if the Mandate for Palestine was not legally solid, “it is hard to accept that any formal legal defect that the international community would now attach to the Palestine Mandate could prevent reliance on its validity almost a hundred years later, after the lives of generations upon generations of Jews and Arabs who relied on its legal effects have been irreversibly changed.” For the Arabs, of course, the effect of Britain’s pursuit of Zionist aspirations was the loss of their country.

10. Conclusion

The legitimacy of territorial claims to Palestine remains at the center, down to the present day, of the Arab-Israeli conflict. The parties spar over the status of the Gaza Strip and the West Bank of the Jordan River. They debate whether a Palestine state does or should exist. An indication of current relevance is the adoption in 2018 by Israel’s Knesset of a Basic Law claiming self-determination in the territory of historic Palestine for the Jewish people. The Basic Law posits, “The actualization of the right of national self-determination in the state of Israel is unique to the Jewish people” (Basic Law, 2018, art. 1(c)). The historical record provides no support for this claim. No territorial rights were accepted as a matter of law as applying to the Jewish people, much less territorial rights that ignored the majority population of the country. The international community did not endorse such rights other than for the population of Palestine in its entirety. Whatever territorial disposition is ultimately devised for Palestine/Israel should not be based on a mis-reading of history.

Acknowledgments

Reference librarians at the Moritz College of Law provided valuable assistance in locating source documents.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

John Quigley

John Quigley is Professor Emeritus at the Moritz College of Law, The Ohio State University, Columbus, Ohio USA. He completed his A.B., M.A., and LL.B. degrees at Harvard University. He is author of The Legality of a Jewish State: A Century of Debate over Rights in Palestine (Cambridge University Press), and Britain and Its Mandate over Palestine: Legal Chicanery on a World Stage (Anthem Press).